Hyman Soloway in Trust v. Municipal Property Assessment Corporation Region 03, 2024 CanLII 71502

Tribunals Ontario Tribunaux décisionnels Ontario Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: July 23, 2024 FILE NO.: DM 186542

Assessed Person(s): Lawrence Soloway Appellant(s): Hyman Soloway in Trust Respondent(s): Municipal Property Assessment Corporation Region 03 Respondent(s): City of Ottawa

Property Location(s): 171 O’Connor Street Municipality(ies): City of Ottawa Roll Number(s): 0614-041-801-28100-0000 Appeal Number(s): 3519521 and 3524709 Taxation Year(s): 2023 and 2024 Hearing Event No.: 783964 Legislative Authority: Rule 66 of the Assessment Review Board Rules of Practice and Procedure

Parties and Counsel/Representative:*

• Hyman Soloway in Trust: Paul Grosman
• Lawrence Soloway: Submissions not received
• Municipal Property Assessment Corporation: Veronica Wellman
• City of Ottawa: Angela Severson*

REQUEST FOR: Dismissal of Appeal(s) HEARD: May 30, 2024 in writing ADJUDICATOR(S): Anita Lovrich, Member; Dirk VanderBent, Vice-Chair

MOTION DECISION

OVERVIEW

The Subject Appeals

1Hyman Soloway in Trust (the “Appellant”) filed an appeal with the Assessment Review Board (the “Board”) pursuant to s. 40 of the Assessment Act, S.O. 1990, c. A.31 (the “Act”) challenging the assessment of 171 O’Connor Street, in the City of Ottawa (the “Subject Property”) for the 2023 taxation year. The ground of this appeal is that the current value of the Subject Property, which was determined by the Municipal Property Assessment Corporation (“MPAC”) in its general reassessment of the current value of the Subject Property (“General Reassessment Value”), is too high, and, therefore, is incorrect (the “Current Appeal Proceeding”). Pursuant to the deeming provision under s. 40(26) of the Act, the Appellant is deemed to have brought the same appeal for the 2024 taxation year.

2An appeal in respect of the Subject Property was previously filed for the 2017 taxation year, on the basis that the current value of the Subject Property was incorrect (the “Prior Appeal Proceeding”). The Prior Appeal Proceeding, including subsequent deemed appeals for the 2018 taxation year, was resolved by the parties. The parties agreed that the assessed value of the Subject Property for the 2017 to 2020 taxation years is $21,452,000 and filed executed Minutes of Settlement with the Board. As requested by the parties, the Board issued a decision for each taxation year under appeal, in accordance with the written Minutes of Settlement that were filed with the Board.

3In the Current Appeal Proceeding, the Appellant now argues that for each year subject to appeal the assessment of the Subject Property is inequitable, as compared to the assessment of similar lands in the vicinity and that there should be an equitable adjustment, pursuant to s. 44 (3)(b) of the Act.

4MPAC’s position is that the same issue has been decided by the Board in the Prior Appeal Proceeding. MPAC has brought this Motion asking the Board for an order that the Current Appeal Proceeding be dismissed on the ground of issue estoppel. The City supports MPAC’s request. The Appellant opposes it.

5In overview, issue estoppel applies where: (i) the same question being raised in the Current Appeal Proceeding has been decided in the Prior Proceeding; (ii) the Board’s decision in the Prior Proceeding was final; and (iii) and the parties are the same in both Proceedings.

6In this Motion, the Appellant does not dispute that the Prior Proceeding is a final decision, nor does the Appellant dispute that the parties are the same in both the Prior and Current Appeal Proceeding. However, the Appellant asserts that the issue of equitable adjustment raised in the Current Appeal Proceeding is a different issue than was decided in the Prior Proceeding.

RESULT

7The Motion is granted. The Current Appeal Proceeding is dismissed.

ISSUES

8In its Motion MPAC requests that:

a. The Appellant is estopped from disputing the current value assessment of the Subject Property as of the January 1, 2016 valuation day in respect of the assessment appeals for Subject Appeals because the issue has been finally determined by the Board, or in the alternative, that relitigating the current value of the Subject Property constitutes an abuse of process;

b. the 2016 CVA on the Subject Property for the 2023 taxation years be confirmed at the value decided in the Prior Appeal Proceeding;

c. the Schedule of Events (“SOE”) be suspended for the for the Subject Appeals on the Subject Property until 45 days after the Board issues its decision on MPAC’s request; and

d. such further and other orders as MPAC’s representative may advise and the Board may permit.

9The issues to be addressed are:

1. Has the same issue been decided in the Prior Decision?
2. If the requirements to establish issue estoppel are met, should the Board exercise its discretion to order that issue estoppel applies?
3. If estoppel does not apply, should the Board dismiss the Current Appeal Proceeding on the ground that it is an abuse of process.

ANALYSIS

Preliminary Issue – Adjournment of the hearing of MPAC's Motion

10The Appellant points out that MPAC's Motion in this case engages the same questions of law that were addressed in Manulife Ontario Property Inc. v. MPAC and Ottawa (City), 2024 ONSC 1047 (“Manulife – Div. Ct.”), further noting that the property owner is currently seeking leave to appeal this decision to the Court of Appeal.

11It is the Appellant’s position that if MPAC's Motion is allowed to proceed, it would result in an inappropriate and unnecessary use of limited time, resources, and expense as the Board’s stance on substantially the same issues is known, and determinations as to the correctness of that stance is pending before the Court of Appeal.

12For this reason, the Appellant asserts that MPAC's Motion should be administratively suspended pending the outcome of the court proceedings respecting Manulife – Div. Ct.

13In addressing this request, the Board observes that the Appellant made this request at the time MPAC requested that the Board schedule a written hearing of its Motion. The Appellant’s request was denied. The Board’s stated reasons were as follows:

The Divisional Court decision has been issued in respect of the Board's Manulife decision. Prior to the issuance of this decision, in 2070649 Ontario Inc. (Sheppard Bogert Developments Limited) v Municipal Property Assessment Corporation Region 09, 2023 CanLII 121514 (ON ARB), the Board considered whether it should proceed to hear a written estoppel motion. The Board's analysis in this decision applies to the circumstances of this proceeding.

14Furthermore, this matter was addressed in greater detail in World Exchange Plaza Holding v Municipal Property Assessment Corporation Region 03, 2024 CanLII 47644 (ON ARB) (“World Exchange”), where the Board stated:

15The Board considered a very similar question in 2070649 Ontario Inc. (Sheppard Bogert Developments Limited) v Municipal Property Assessment Corporation Region 09, 2023 CanLII 121514 (ON ARB) (“Sheppard Bogert”)). Specifically, after leave to appeal the Manulife decision was granted at the Divisional Court, but before Manulife – Div. Ct. was issued, the Board received a request to suspend a motion to dismiss, making a similar argument that the motion should be suspended pending completion of the appeal proceeding before the Divisional Court: leave to appeal to Divisional Court was granted in Manulife v. Municipal Property Assessment Corporation et al, 2023 ONSC 4705 (“Manulife – Leave Decision”). The Board denied the request in Sheppard Bogert. The Board found that, when deciding whether to grant the request to suspend the motion to dismiss, the Board had to consider the likelihood that the Manulife - Leave Decision could impact the Board’s hearing of the dismissal motion. For the reasons set out in Sheppard Bogert, the Board found that it was unlikely.

16The Divisional Court’s dismissal of the Manulife appeal, which was issued after the Board’s decision in Sheppard Bogert, obviously reinforces the Board’s conclusion in Sheppard Bogert. In Manulife – Div. Ct., the Divisional Court unequivocally found that the Board correctly identified the law of issue estoppel and correctly applied the doctrine to the facts before it. The Court further stated that it was satisfied that the Board properly considered whether to exercise its discretion to apply the doctrine and properly directed itself to the nature of this discretion (see paragraph 39). Consequently, the Board finds that it is unlikely that the current request to the Ontario Court of Appeal for leave to appeal could impact the Board’s hearing of the City’s dismissal motion in this Current Appeal Proceeding.

17In further support of the above conclusion, the Hearing Panel in Sheppard Bogert provided an additional interpretative analysis of s. 44(3)(b) which supports the finding in Manulife (see paragraphs 45 to 59). This analysis was not addressed in the Manulife – Div. Ct. decision, but may be considered in the pending Manulife – Div. Ct. appeal proceeding before the Court of Appeal.

The Board adopts this analysis and affirms its earlier decision to suspend the hearing of MPAC’s Motion.

Issue 1: Has the same issue been decided in the Prior Decision?

MPAC's Submissions

15MPAC submits that the same issue has already been decided by the Board in the Prior Appeal Proceeding. In support of this submission, MPAC relies on Manulife -Div. Ct.. MPAC alleges that there is: no new evidence; no relevant change in the property that would engage sections 33 or 34; no errors that would engage section 32 of the Act and no other special circumstances that would over-ride the public interest in applying issue estoppel.

Appellant’s Submissions

16The Appellant submits that the Board should dismiss this Motion as the Board has not heard or considered any evidence related to the Prior Appeal Proceeding or the Current Appeal Proceeding. The Appellant further submits that the issue of equity of the assessments relating to the 2023 and 2024 taxation years issues raised in the Current Appeal Proceeding are novel issues, and that the Appellant has the statutory right to appeal its annual assessments for the 2023 and 2024 taxation years.

The City’s Submissions

17The City submits that the Board should dismiss the Current Appeal Proceeding on the basis of issue estoppel, as all the preconditions of issue estoppel have been met and argues that the City would be prejudiced if it were forced to expend limited resources to re-litigate appeals that have been properly disposed of by the Board.

Findings on Issue 1

18The Board observes that the circumstances of this case and the submissions of the parties are effectively the same as the circumstances and submissions before the Board in Manulife Ontario Property Portfolio Inc. v Municipal Property Assessment Corporation, 2023 CanLII 39085 (ON ARB), 2023 CanLII 13877 (ON ARB) (“Manulife”), where the hearing member found that the question of equitable reduction was an issue that was necessarily before the Board in the Prior Appeal Proceeding and that no injustice would result from applying issue estoppel in those circumstances. The Board also refers to World Exchange, which adopted and applied the analyses and findings of Manulife. In Manulife, the Appellant did not allege a change in the Subject Property or an incorrect current value but submitted that the equitable adjustment had changed since the earlier appeal proceedings. However, the Hearing Member found that an equitable adjustment could not be conducted absent a determination regarding current value as “s. 44(3)(b) of the Act only comes into play after the Board makes a determination regarding current value.”

19Manulife was appealed to the Divisional Court, and the Divisional Court upheld the Board’s analyses and findings in Manulife – Div. Ct. As of the issuance date of this Motion Decision, an application for leave to appeal Manulife – Div. Ct. is pending before the Court of Appeal.

20As the circumstances of this case and the submissions of the parties are effectively the same as the circumstances and submissions before the Board in Manulife and World Exchange, and as the Divisional Court has upheld the Hearing Member’s analyses and findings in Manulife, finding that the Board did not err in its application of the doctrine of issue estoppel to dismiss Manulife’s assessment appeals, the Board adopts and applies the analyses and findings of Manulife and World Exchange in this case.

21As such, the Board finds that the same issue has been decided in the Prior Decision.

Issue 2: If the requirements to establish issue estoppel are met, should the Board exercise its discretion to order that issue estoppel applies?

22As the only issue before the Board in the Current Appeal Proceedings is the question of an equitable adjustment for the 2023 and 2024 taxation years, and since the Board adopts the analysis that the question of equitable reduction was an issue that was necessarily before the Board in the Prior Appeal Proceeding, all the requirements to establish issue estoppel are satisfied. Consequently, the Board finds that the doctrine of issue estoppel applies. The remaining question is whether the Board should exercise its discretion to decline to apply issue estoppel.

MPAC's Submissions

23MPAC submits that there has been no change in the Subject Property or other special circumstances requiring the Board to exercise its discretion. It argues that the application of issue estoppel will not work any injustice in this case.

Appellant’s Submissions

24The Appellant argues that the Board should not apply the discretionary doctrine of issue estoppel to dismiss the Current Appeal Proceeding because to do so would create an injustice as the Appellant would not have been able to exercise their statutory right to appeal the 2023 and 2024 appeals.

The City’s Submissions

25The City states that not applying issue estoppel would undermine the appeal process at the Board, jeopardize the finality of assessment appeals, and place an undue burden on taxpayers and the municipality, who relies on the stability of the tax base. The City states that even if the Current Proceeding proceeded to a hearing, the result would be the same and submits that the cost of duplicative proceedings should be avoided wherever possible.

Findings on Issue 2

26The issue of the exercise of discretion was addressed in detail by the Board in Manulife (and approved by the Divisional Court in Manulife – Div. Ct). The relevant circumstances in this case are virtually the same as those considered in Manulife. For this reason, the Board adopts the analysis and conclusion in Manulife that the Board should not exercise it discretion to decline to apply issue estoppel in this case.

27There is no indication that the process leading to the decision in the Prior Appeal Proceeding was anything other than fair. The Appellant has not satisfied the Board that it should exercise its discretion to decline to apply issue estoppel in this case.

Issue 3: If estoppel does not apply, should the Board dismiss the Current Appeal Proceeding on the ground that it is an abuse of process?

28Since the Board has found that issue estoppel has been established, and that it will exercise its discretion to apply issue estoppel in this case, it is unnecessary for the Board to address this issue.

CONCLUSION

29As the Board has found that the Appellant is estopped from raising the only issue raised in the Current Proceeding, it would be frivolous for this proceeding to continue. Therefore, pursuant to Rule 24 (b) of the Board’s Rules of Practice and Procedure, the Current Appeal Proceeding is dismissed.

ORDER

30The Board orders that the Appellant is estopped from raising the issue that the current value of the Subject Property for the 2023 and 2024 taxation years is incorrect and inequitable.

31The Board grants MPAC’s Motion and dismisses the Appellant’s appeals in respect of the Subject Property for the 2023 and 2024 taxation years.